Mitchel v Department of Corrections

[2015] NZHC 1668

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI 2015-485-22 [2015] NZHC 1668

BETWEEN

JONATHAN MITCHEL

Appellant

AND

DEPARTMENT OF CORRECTIONS Respondent

Hearing:	14 July 2015
Counsel:	S Taylor for Appellant S W P Woods for Respondent
Judgment:	17 July 2015

JUDGMENT OF SIMON FRANCE J

[1]      This  is  an  appeal  against  an  order  of  reparation  made  consequent  upon Mr Mitchel’s  conviction  for  breach  of  community  detention.1     At  the  time Mr Mitchel  was  sentenced  on  seven  charges  –  burglary,  breach  of  community detention (x2), breach of release conditions (x2), failure to answer bail and a driving offence.  The final outcome was a term of imprisonment of seven months and two weeks.  In addition Mr Mitchel was ordered to pay reparation of $775.10 for the cost of replacing an ankle bracelet used for electronic monitoring.  It is this last order that

is the subject of the appeal.

1      Department of Corrections v Mitchell [2015] NZDC 5918.

MITCHEL v DEPARTMENT OF CORRECTIONS [2015] NZHC 1668 [17 July 2015]

[2]      One ground of complaint was the lack of notice that reparation was being sought.  The topic apparently arose only late in the piece at sentencing.  Counsel was given an opportunity to take oral instructions and then made submissions. An appeal ground  was  that  Mr Mitchel  has  been  disadvantaged  by  this.    Accordingly,  I adjourned the appeal to enable the filing of evidence from both parties.  Mr Taylor

accepts any concerns in terms of process have now been removed.2

[3]      The three grounds of appeal are that:

(a)      the  loss  of  the  bracelet  is  not  causally  connected  to  any  of  the offences.   It occurred at a time outside the periods covered by the breach of community detention charges;

(b)the bracelet was lost in circumstances for which Mr Mitchel cannot be held responsible; and

(c)       Mr Mitchel’s financial situation is such as to make a reparation order

inappropriate.

[4]      Looking first at the circumstances in which the bracelet was lost, Mr Mitchel had  complained  about  its  tightness.    Accordingly,  a  refitting  was  arranged  for

2 December 2014 and that took place.  Recalling that Mr Mitchel was on a sentence of community detention involving an evening curfew, he was not required to remain at the address following the refitting and did not do so.  However, he did not return that night and remained in breach of the curfew from that evening until his arrest on

20 January 2015. When arrested he was not wearing the bracelet.

2      This is not a criticism of the District Court.  No doubt most times counsel will be able to provide the necessary information and submissions on short notice.  As will become apparent, it just happens that in this case Mr Mitchel has an unusual explanation concerning the bracelet.  As a matter of practice, however, warning should be given if reparation is being sought.

[5]      Mr Mitchel  says  that  on  15  December,  or  thereabouts,  he  was  at  his girlfriend’s address in Trentham.   Other people were present, and considerable quantities of alcohol were consumed.  During the day he was teased about the ankle bracelet by a group of young men who said he should remove it.   Mr Mitchel declined.

[6]      The drinking continued until around 2 am at which point Mr Mitchel went into what was seemingly a deep sleep.  He awoke at mid-day to find the young men and the bracelet gone.  He did not report it because he was already on the run and concerned about going to prison.

[7]      It seems a somewhat truncated version of this story was provided to the District Court at sentencing.   However the Court considered it was nevertheless Mr Mitchel’s responsibility.  I agree.

[8]      The ankle bracelet is attached as part of a sentence which imposes restrictions on the recipient’s activities.  Here one of the conditions was that he be at a certain address at certain times.   Mr Mitchel ignored that, and instead, whilst on the run, attended a party at another address.  He drank a lot, was in discussions with a group who were keen to remove it, kept drinking, and ultimately collapsed, it seems, in an alcoholic stupor.  During that time it is said the bracelet was taken.  Upon learning of this, he did not contact authorities so that inquiries could be made, and any chance of recovery was lost.  In these circumstances I consider Mr Mitchel was properly held responsible.

[9]      It is necessary therefore to consider the other challenges.

[10]     The primary one considers the linking of the reparation order to an offence of which Mr Mitchel has been convicted.  This was not expressly done at the original sentencing.  Section 32 of the Sentencing Act 2002, which authorises the making of reparation orders, requires that the loss or damage be caused through or by means of an offence of which the offender is convicted.  It has been held that “by means of” is

not to be narrowly construed,3  and captures damage closely associated with the offence.  But there still must be that connection.

[11]     The only option here is a charge of breach of community detention which covers the period 30 November to 2 December.  This charge covers a breach from the start of curfew at 20:30 up until 11:59 on 2 December, but nothing thereafter.  It is known that Mr Mitchel had the bracelet on 2 December because it was refitted during the day.  He then failed to return that night.  The evidence leaves little doubt that the damage to the bracelet occurred after this date; indeed probably a considerable time later.  I do not consider the fortuitous capturing of the start of a period of repeated uncharged breaches provides a sufficient nexus to the damage. The point is emphasised by the fact that the charge on which the respondent relies was itself laid on 4 December, again sometime before the damage occurred.   The reality is that no charge has been laid as regards a breach to which the damage is associated, nor as regards the damage itself.

[12]     Accordingly the appeal is allowed and the reparation order quashed.

Simon France J

Solicitors:

S Taylor, Barrister, Upper Hutt

Luke Cunningham & Clere, Crown Solicitors, Wellington

3      R v Donaldson CA 227/06, 2 October 2006 at [36].